Exclusive mandate

An exclusive mandate is a government's assertion of its legitimate authority over a certain territory, part of which another government controls with stable, de factosovereignty. It is also known as a claim to sole representation or an exclusive authority claim. The concept was particularly important during the Cold War period when a number of states were divided on ideological grounds.

Germany from 1949 to 1990

Federal Republic of Germany

For nearly all of the 41 years that Germany was split into two countries, the Federal Republic of Germany (West Germany) claimed to be the sole legitimate successor to the German Reich that existed from 1871 to 1945. This claim was initially based solely on the government's mandate by virtue of free elections. To that end, it claimed Berlin, capital of united Germany from 1871 to 1945, as its capital, with the provisional capital in Bonn.

In a statement made before the Bundestag, German Chancellor Konrad Adenauer asserted this mandate as early as October 21, 1949, in response to the constitution of the German Democratic Republic (GDR) coming into effect. The Secretary of State Summit of the three western powers on September 18, 1950 in New York City, supported Chancellor Adenauer's claim.

When the Soviet Union proclaimed the sovereignty of the GDR, the West German Bundestag once again unanimously insisted that the Federal Republic was the sole legitimate representative of the German people. At the Treaties of Paris (Pariser Verträge), at which the Federal Republic of Germany was admitted into the North Atlantic Treaty Organization, the allied nations adopted the position which the three western allies had already confirmed at the Nine-Power Conference in London: that the Federal Republic had the exclusive right to act on behalf of the entire German people in matters of foreign policy. The western nations thereby recognized the Federal Republic as the only lawful government for Germany as a whole.

Aside from such considerations pertaining to international law, the reunification clause of the Basic Law suggested that international recognition of the German Democratic Republic was to be avoided, so as not to sever the constitutional mandate to a unified German state.

Until 1973, the Federal Republic took a strict line in claiming an exclusive mandate for all of Germany. Under the Hallstein Doctrine, the Federal Republic broke diplomatic relations with states that maintained diplomatic relations with the GDR, except for the Soviet Union. On different levels, such as in international sports, there were, however, a wide range of international cooperations which even led to unified German teams in six Olympic Games.[1] Over time, especially after the election of a social-liberal coalition led by Willy Brandt in 1969, the exclusive mandate was softened, as it severely limited the Federal Republic's domestic and international autonomy. Starting in 1973, under the Ostpolitik policy, the Federal Republic took the line that the Democratic Republic was a de facto government within a single German nation, in respect of which the Federal Republic was the sole representative de jure, but limited to its own territorial extent; hence relinquishing any claim to be de jure the government of Germany as a whole.

Judicially, an exclusive mandate had been claimed to have arisen from the proposition that the German state as a whole had been preserved, that only one German state could legitimately exist, and that that one state was identical with the Federal Republic. The German Democratic Republic was therefore held to be an illegally constituted Sovietpuppet state occupying territory that rightfully belonged to the Federal Republic, thus lacking autonomy. An alternate view held that the GDR was in a state of civil war with the FRG government, and therefore could not be recognized as a state under international law. A third, the so-called "umbrella state" theory, entails the existence of two fragment states under the umbrella of a single German nation that had been formed in 1871 and which had never actually been annihilated; this theory arose in the late 1960s and was maintained in a ruling of the Federal Constitutional Court of Germany of 31 July 1973 upholding the "Basic Treaty" by which relations between East and West Germany were normalised. Crucially, although the Constitutional Court reaffirmed the proposition that the pre-1945 German state had been preserved and organised, albeit partially, in the institutions of the Federal Republic, the Justices explicitly rejected the proposition that this would imply an exclusive mandate; "...identity does not require exclusivity".

With the admission of both German states to the United Nations in 1973, matters regarding the exclusive mandate were no longer relevant. Nevertheless, the Constitutional Court maintained that the Federal Republic continued to bear a responsibility for the whole German people; albeit that this responsibility could only be discharged in respect of Germans physically present in its territory or within its jurisdiction. Accordingly, the Federal Republic of Germany did not recognize a distinct citizenship for the German Democratic Republic; if East Germans presented themselves in West Germany, or at a West German embassy in a third country, they could obtain a West German passport. Generally, the Federal Republic considered East Germans to be German citizens under the old 1871–1945 all-German citizenship (i.e. Bundesbürger, citizens of West Germany). Refugees who fled from the GDR were therefore not deported, and automatically qualified for West German citizenship.

In addition, visitors from the GDR would receive a West German passport upon request, for example, in order to ease travel to the United States. After the fall of the Berlin wall in November 1989, East Germans were greeted with Begrüßungsgeld (100 West German Deutsche Mark) and could travel freely within West Germany, while West German access to the East was still hindered for some weeks by visa and the Mindestumtausch mandatory minimum exchange of 25 DM.

German Democratic Republic (1949–90)

The 1949 constitution of the German Democratic Republic also acknowledged that Germany was an indivisible republic, and thus there was only one German citizenship. The GDR, therefore, was also founded on the premise of being the de jure sovereign representative of all Germany. Initially, it regarded the West German regime as an illegally constituted NATO puppet state, a line accepted by most of the Eastern bloc. The GDR erected the Berlin Wall in 1961 partly to prevent Germans moving freely within Germany. In 1974, however, the reunification clause was stricken from the GDR's constitution. Thereafter, it regarded itself as a separate state from West Germany. The Communist regime collapsed in the fall of 1989. East Germany lingered on for another year until it declared its accession to the Federal Republic in the German reunification of 1990.

Mainland China and Taiwan

Since the end of the Chinese civil war in 1949, the Republic of China was limited to Taiwan (taken from Japan in 1945, ceded by Qing China in 1895 - although renounced in 1952) and a few islands near Fujian, while the People's Republic of China controlled mainland China, and since 1950 also the island of Hainan. Both Chinese governments claimed sovereignty over all of China, and regard the other government as being in rebellion. Until 1971, the Republic of China was a permanent member of the UN Security Council with veto power. Since then, however, it was excluded in favor of the People's Republic of China, and since 1972, it was also excluded from all UN-subcommittees. Since the death of Chiang Kai-shek in 1975, Republic of China no longer aggressively asserts its exclusive mandate and most of the world's nations have since broken their official diplomatic ties with Republic of China (except for 21 nations including Holy See as of 2008). Nevertheless, most nations, as well as the People's Republic government, continue to maintain unofficial relations.

Since the 1990s, the stance of the Republic of China has softened. When the ROC established ties with Kiribati in 2003, it did not demand that Kiribati break its existing ties with the PRC. However, the PRC's stance has not softened and it does not maintain diplomatic relations with the 22 countries that recognize the ROC. The ROC also participates in sporting events under the name "Chinese Taipei" and the World Trade Organization as the Separate Customs Territory of Taiwan, Penghu, Kinmen, and Matsu.

Korea

When South Korea and North Korea were created within months of each other in 1948, both claimed sovereignty over all of Korea. Both states claimed that the other was an unlawfully constituted puppet state of the United States and the Soviet Union, respectively. In 1991, however, both nations joined the UN, as part of their reconciliation policy.

Vietnam

The Democratic Republic of Vietnam was proclaimed in 1945; the Republic of Vietnam gained its independence from France in 1954. While elections were intended to be held in 1955 to reunite the country, they never took place. For the next 20 years, both staked claims to all of Vietnam, claiming that the other was an illegally constituted puppet state. This continued until South Vietnam unconditionally surrendered to North Vietnam in 1975.

When some European countries (such as Switzerland) started recognizing North Vietnam towards the end of the Vietnam war, South Vietnam did not interrupt its diplomatic relations with them. Switzerland thus recognized North Vietnam in 1971 but also turned its consulate in Saigon (South Vietnam) into an embassy until the end of the war in 1975.

In a more ambiguous situation, the Kurdish territory of northeast Syria became controlled by Syrian Kurdish federal state Rojava when Syrian government forces left the area, or areas were liberated from ISIL occupation.